President Reuven Rivlin didn’t scare Public Security Minister Amir Ohana (Likud) when he explained that “There are also ethical considerations, which I don’t know whether a president has the authority to consider, or whether they’re related to the Supreme Court.” Such threats should be made in the language of the person being threatened, and not in a foreign language, otherwise they have no validity. If, for example, Rivlin had said “I’m going to do in Netanyahu because he’s a criminal,” Ohana would probably have been more impressed. That’s how they talk in the Mafia.
Rivlin is well aware of his powers. He was not required to grant the mandate to the person with the most recommendations, the person who heads the largest party, or even to the person who presumably has the best chance of forming a government. The ritual of the pilgrimage of the party representatives to the President’s Residence takes place because the law requires him to consult with them. But it’s consultation only – if he so desires, he can accept the recommendation; if not, then not. This power is very broad, and does not obligate the president to obey even democratic rules regarding the majority and the minority.
The law determines that “Within seven days of the publication of the results of the Knesset election, the president will impose on one of the lawmakers who has consented to do so, the task of forming a government.” Anyone who consents – even if his name is Ahmad Tibi, Mansour Abbas or Itamar Ben-Gvir. Even his question regarding his authority to use the ethical grounds no longer requires the approval of the Supreme Court.
It’s true that the court granted Netanyahu permission to serve as prime minister despite the fact that he is under criminal indictment, but aside from that the High Court of Justice ruled that one of the basic assumptions that allows Netanyahu to form the 35th government, is that he will be bound by a conflict of interest agreement. And the prime minister even agreed to that specifically in a hearing in the High Court with an expanded panel of 11 justices.
To date no conflict of interest agreement has been signed. Netanyahu has ostensibly demonstrated contempt for the High Court decision, and that could have eliminated Rivlin’s hesitation. Netanyahu’s unbridled attack against the prosecution and the State Prosecutor’s Office, and his accusation that “that’s what a coup looks like” – an accusation that comes shortly after we heard horrifying testimony about the way in which he extorted the Walla website – provided the president with full backing to activate the “ethics” clause and to make it his leading consideration when he came to decide to whom to grant the mandate to form a government.
And if he was still not sure that the ethical consideration is in his power, he could have adopted it and put it to the test of the High Court. In doing so he would have contributed another essential constitutional aspect to the process of choosing a prime minister, and it could have become his most important legacy.
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The ethical consideration stands on its own, regardless of the number of recommenders who are willing to see a man who is accused of bribery, fraud and breach of trust as Israel’s prime minister. Due to the absence of a clear and solid majority of supporters, the president’s decision was much easier. Rivlin, who himself said that he does not see before him anyone who can form a government, thereby implying that Israel is likely to be dragged into a fifth election round, gave the ethical consideration its proper place – in words.
Because he holds the highest office in the State of Israel, the one that represents its identity and its character, he was not only permitted but obligated to give voice to his opinion of a person under criminal indictment who is undermining the foundations of the state, rather than making do with a promise that after the conclusion of his term he would make his opinion known. By then his opinion will be of no public value. He will join a long series of public figures, heads of the Shin Bet security service and the Mossad, and chiefs of staff, who at the conclusion of their tenure suddenly found their conscience and their courage and revealed the truth.
Rivlin has already been accused, and of course will yet be accused of destroying democracy, persecuting Netanyahu, betraying the will of the people and assuming powers that do not belong to him. But the real betrayal was when he granted the leader of the gang a license to continue his work as a demolition contractor.